Reported Decision : 122 A Crim R 28 New South Wales Court of Criminal Appeal CITATION : Regina v B D [2001] NSWCCA 184 FILE NUMBER(S) : CCA 60073/01 HEARING DATE(S) : 30/04/01 JUDGMENT DATE : 15 May 2001 PARTIES : Regina B D - Respondent JUDGMENT OF : Stein JA at 1; Greg James J at 2; Bell J at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/41/0175 LOWER COURT JUDICIAL Graham DCJ OFFICER : COUNSEL : M C Marien - Appellant J P Punch - Respondent SOLICITORS : S E O'Connor - Appellant Galloways - Respondent CATCHWORDS : Question submitted by Director of Public Prosecutions pursuant to s5A(2) Criminal Appeal Act 1912 - does obtaining and transporting ingredients and implements constitute taking a step in the process of manufacture of prohibited drugs Criminal Appeal Act 1912 LEGISLATION CITED : Crimes Legislation Further Amendment Act 2000 Drug Misuse and Trafficking Act 1985 Director of Public Prosecutions Reference No 2 of 1995 (1995) 65 SASR 508 Federal Commissioner of Taxation v Jack Zinader Pty Ltd (1949) 78 CLR 336 CASES CITED: McNicol v Pinch (1906) 2 KB 352 R v Kouroumalos [2000] NSWCCA 453 R v Thomas (1993) 67 A Crim R 308 DECISION : Question answered in the negative IN THE COURT OF CRIMINAL APPEAL 60073/01 STEIN JA GREG JAMES J BELL J TUESDAY 15 MAY 2001 REGINA v B D JUDGMENT 1 STEIN JA: I agree with Bell J. 2 GREG JAMES J: I agree with Bell J. 3 BELL J: Pursuant to s 5A(2) of the Criminal Appeal Act 1912 ("the CAA") the Director of Public Prosecutions submitted the following question for determination by this Court: "Did his Honour Judge Graham err in law in concluding that the obtaining and transporting of ingredients (namely, Sudafed, phosphorous powder and orthophosphoric acid) and implements to be used in the manufacture of methylamphetamine could not constitute taking a step in the process of manufacture within the meaning of s6 of the Drug Misuse and Trafficking Act 1985 ("the Act")?" 4 The question of law arises from the trial of the respondent upon an indictment charging him that on 4 April 1998 he did knowingly take part in the manufacture or production of a prohibited drug, to wit, methylamphetamine, in an amount not less than the commercial quantity applicable to that drug contrary to s 24(2) of the Act. The respondent elected to be tried to judge alone. The trial commenced before Judge Graham on 4 December 2000. On 5 December 2000 at the conclusion of the Crown case his Honour determined that there was no case to answer and entered a verdict of not guilty. 5 This Court is required to hear and determine any question submitted to it under s 5A(2) of the CAA. The determination of the question submitted does not in any way affect or invalidate the verdict given by his Honour. Provision is made in s 5A(2)(e) of the CAA for the person charged at trial to be heard before the Court upon the determination of the question submitted. Mr Punch, who was counsel for the respondent at trial, appeared. In written submissions he invited the Court to answer the question posed by the Director in the negative. 6 The evidence led by the Crown at the respondent's trial was as follows. On the evening of 4 April 1998 the respondent was driving a motor vehicle along the Hume Highway when he was stopped by police and required to submit to a random breath test. A search of his vehicle revealed a number of carry bags in the boot. In one of those bags a substantial quantity of Sudafed tablets was located. There were 232 boxes containing 90 tablets per box, 360 blister packs with 15 tablets in each pack and 897 loose tablets. In total there were 27,180 tablets. There was a 500 ml bottle of orthophosphoric acid and a bag containing approximately 1028 grams of red phosphorous. A number of items of chemistry glassware including stands, flasks, pipes and pumps were also located. The glassware appeared to be new and was wrapped in corrugated cardboard. 7 During the course of the search the respondent said to the police "I think I'm in the shit". Two pistols, three boxes of .45 calibre ammunition (totalling 144 rounds) and $9,000.00 in cash was located during the course of the search. The respondent had $994.00 cash on his person. 8 At the trial a statement prepared by Vincent Murtagh, Senior Chemist at the Australian Forensic Drugs Laboratory, dated 6 July 1998, together with the transcript of evidence given by Mr Murtagh at the committal hearing were tendered. Mr Murtagh gave evidence on a voire dire. By agreement the whole of the evidence led on the voire dire was admitted as evidence in the trial. 9 Mr Murtagh stated that Sudafed tablets contain pseudoephedrine which is a precursor for the making of methylamphetamine. The most common method of making methylamphetamine illicitly involves the reduction of pseudoephedrine. This is carried out by a reaction with red phosphorous and hydriodic acid. Mr Murtagh stated that the glassware located in the course of the search of the respondent's vehicle would be suitable for both the extraction and manufacture processes which are described in his statement. Not all of the chemicals necessary to carry out the conversion of pseudoephedrine to methylamphetamine were located in the course of the search. 10 It was Mr Murtagh's evidence that a conservative yield from the Sudafed tablets seized in the course of the search would be 660 grams of pure methylamphetamine. The purity of street methylamphetamine is around 3 - 5 percent. In Mr Murtagh's experience orthophosphoric acid is not a chemical ordinarily used in the illicit manufacture of methylamphetamine. He said orthophosphoric acid could be used with an iodide salt in the conversion process. No iodide salt was located in the search of the respondent's vehicle. 11 During the course of evidence Mr Murtagh agreed that the first thing done at the beginning of the extraction process is the removal of the Sudafed tablets from their blister packets. The next step is to crush the tablets and add a solvent. There was no evidence of any solvent being seized during the course of the search of the respondent's vehicle. 12 Judge Graham considered that at a prima facie level the evidence adduced by the Crown was capable of establishing that the respondent's purpose or intention was to use the chemicals and chemical equipment to manufacture methylamphetamine. 13 Under the Act "manufacture" for the purpose of the offence created by s 24(2) is defined to include the process of extracting or refining the prohibited drug; s 3. 14 Section 6 of the Act relevantly provides as follows: "6. For the purposes of this Act and the Regulations a person takes part in the manufacture, production or supply of a prohibited drug, if - (a) the person takes, or participates in, any step, or causes any step to be taken, in the process of manufacture, production or supply; (b) the person provides or arranges finance for any such step in that process; or (c) the person provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which the person is the owner, lessee or occupier or in the management of which the person participates." 15 Judge Graham observed of s 6 of the Act that it provides an exclusive definition of the circumstances in which a person takes part in the manufacture of a prohibited drug. In his Honour's view the Crown case, taken at its highest, could not support a finding that the respondent took part in the manufacture of methylamphetamines because it could not be shown that he took or participated in any step in the process of that manufacture, within the meaning of s 6(a) of the Act. 16 The Crown contended that the acquisition and transportation of chemicals and equipment necessary for the manufacture of methylamphetamines was a step in the process of manufacture. The Crown also relied on the removal of the Sudafed tablets from their blister packs as a discrete step in the process of manufacture. 17 Judge Graham accepted that a step, being an intermediate stage in the process of manufacturing a prohibited drug, would fall within the terms of s 6(a). In this respect his Honour accepted that it would not be necessary, at the time of taking the intermediate step, for the person to have possession of (or access to) all of the equipment and all of the chemicals necessary to complete the process. The question his Honour identified was "whether the acquisition of the wherewithal and its transportation to another place amount to a step in the process of manufacture". His Honour considered that a distinction should be drawn between preparatory acts and acts which, in truth, represented steps in the process of manufacture. It followed that acts which were merely preparatory did not fall within the statutory prohibition. 18 In Judge Graham's view the acquisition and transportation of the chemicals amounted to no more than the respondent equipping himself with materials necessary to undertake the process of manufacture at a future time. In similar vein the removal of the Sudafed tablets from their blister packs could not be described as anything more than preparation for a future process of manufacture. 19 In submissions before this Court the Crown contended that Judge Graham erred in drawing the distinction between acts which are merely preparatory to the process of manufacture and steps in a process of manufacture. 20 In the Crown's submission the terms of s 6 are broad and encompass the acquisition and transportation of any materials to be used in the subsequent manufacture of prohibited drugs. In support of this submission the Crown relied on the observations of Gleeson CJ in R v Thomas (1993) 67 A Crim R 308 at 310: "It is to be noted at the outset that the concept of taking a step in process of manufacture appears, in s 6 of the Act, in a context which manifests a legislative intention that is inconsistent with any narrow or pedantic approach to the description of activities connected with bringing prohibited drugs into existence, (b) and (c) of s 6 demonstrate that." 21 In Thomas the police executed a search warrant on premises occupied by the appellant. In those premises they located a fully operational laboratory. The appellant was in possession of a substantial quantity of phenyl-2-propene (P-2-P). There was no dispute that the appellant had himself produced the P-2-P in his laboratory. It was accepted that methylamphetamine may be produced by a process which uses P-2-P as a raw material. In the Court of Criminal Appeal it was contended that, even if the Crown proved beyond reasonable doubt that the appellant produced the P-2-P intending to use it in order to make methylamphetamine, his conduct was merely preparatory to the manufacture of methylamphetamine. The Court rejected this proposition. Gleeson CJ observed: "Where, as the Crown alleged to be the case here, a person manufactures something with a view to going on to use it in the manufacture of a desired end product then it is normally proper to regard that as a step in the process of manufacturing the end product (p 311)." 22 The process of manufacture was underway in Thomas. I do not see that case as supporting the Crown's submission that the terms of s 6 of the Act ought be construed so as to include, as a step in the process of manufacture, the acquisition and/or transport of any chemical or item of equipment with the intention that it be used in connection with the manufacture of prohibited drugs at some future time. 23 In the Crown's submission the purchase of a chemistry flask by a person who intended to use it in connection with the manufacture of prohibited drugs would, without more, constitute a step in the process of manufacture within the meaning of s 6 of the Act and thus expose the purchaser to criminal liability for taking part in the manufacture of a prohibited drug contrary to s 24 of the Act . 24 The construction for which the Crown contends seems to me to strain the meaning of the words "takes, or participates in, any step … in the process of manufacture" in s 6 of the Act. 25 In Federal Commissioner of Taxation v Jack Zinader Pty Ltd (1949) 78 CLR 336 Dixon J at 343 adopted Darling J's definition of manufacture in McNicol v Pinch (1906) 2 KB 352 at 361: "The essence of making or manufacturing is that what is made shall be a different thing from that out of which it is made". The New Shorter Oxford English Dictionary defines "process" relevantly as "a systematic series of actions or operations directed to some end, as in manufacturing, printing, photography etc.". 26 The Crown submitted that Judge Graham erred in that he construed the terms of s 6 of the Act restrictively. I do not agree. I consider there is force to his Honour's observation: "The Statute does not refer to acts "leading to, preparatory to, or with a view to" the process of manufacture. The words of the statute themselves, in s 6, refer to taking or participating in any step or in causing any step to be taken in the process of that manufacture (emphasis supplied)." (ROS pp7/8). To my mind the acquisition and/or the transport of chemicals or equipment do not, without more, constitute steps in the process of manufacture. They are steps preparatory to the process of manufacture. 27 The Crown relied on R v Kouroumalos [2000] NSWCCA 453 in support of its contention that the removal of the Sudafed tablets from the blister packs was a step in the process of manufacture of methylamphetamine. In that case the appellant pleaded guilty to a charge of "knowingly take part in the manufacture of methylamphetamine in an amount not less than the commercial quantity" and to the deemed supply of one ounce of methylamphetamine. The sentencing judge had before him a statement of facts including, relevantly, that the appellant had removed a very large quantity of Sudafed tablets from their foil containers. The appellant was said to be involved at a relatively low level in a drug manufacturing operation controlled by Les Kalache and his associates. The Sudafed tablets had been purchased by the organisation preparatory to the extraction of the pseudoephedrine. The facts further alleged that the appellant had paid for and collected Ph papers, vacuum grease and drums of acetone each being substances required for the manufacture of methylamphetamine. He had kept at his home vacuum flasks and other utensils used in the manufacturing process and he had engaged in testing the glucose content of some methylamphetamine supplied to him by the organisation and reported back on his findings. 28 The applicant in Kouroumalos sought to go behind his pleas of guilty in the Court of Criminal Appeal. He contended that he had been insufficiently and inappropriately advised in relation to the entry of his pleas and in relation to the decision not to give evidence explaining certain intercepted conversations. Wood CJ at CL (in a judgment with which Studdert and Whealy JJ agreed) noted that: "the law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as an admission of all the legal ingredients of the offence (O'Neill) and as the most cogent admission of guilt that can be made, for the Court is prepared to act upon it and proceed to conviction or final disposal of the proceedings." The Court rejected the appellant's contention that he had been inappropriately advised in relation to his pleas. The application to set the pleas aside was dismissed. 29 In dealing with the applicant's appeal against his sentence in Kouroumalos Wood CJ at CL observed: "It's case in relation to the first count was that, being aware that the Sudafed tablets he popped, and the other items he fetched, were required for the manufacture of the prohibited drugs, he "knowingly participated in their manufacture" by carrying out those activities. They were necessary steps in the operation, as was the provision of his premises as a place to pop the Sudafed tablets from which the required pseudoephedrine was recovered, and to store the chemical flasks needed for a cook. It was in that sense he knowingly participated in the manufacture of the drugs. That was sufficient as a matter of law: see s 6 Drug Misuse and Trafficking Act 1985: Thomas (1993) 67 A Crim R 308 at 310." 30 I do not consider that the passage set out above in Kouroumalos should be seen as supporting the construction of s 6 of the Act for which the Crown contends in this case. As noted above, the applicant in Kouroumalos pleaded guilty to the offence of knowingly take part in the manufacture of methylamphetamine. He thereby admitted all the legal ingredients of the offence. The evidence disclosed that the organisation of which he was a part was engaged in manufacturing methylamphetamine. His role in "popping" the Sudafed tablets and in carrying out the other activities, including reporting on the glucose content of the methylamphetamine produced by the syndicate, needs to be seen in this light. 31 The Crown referred us to Director of Public Prosecutions Reference No 2 of 1995 (1995) 65 SASR 508. The accused in that case was charged with taking part in the sale of amphetamine contrary to s 32(1)(d) of the Controlled Substances Act 1984 (SA). At the conclusion of the Crown case the trial judge ruled that there was no case to answer and the accused was acquitted by direction. The Director of Public Prosecutions applied to the Judge to reserve a question of law namely: "Do the words 'take part in the sale' as they appear in section 32(1)(d) of the Controlled Substances Act 1984, require the Crown to establish a completed sale for the purpose of proving the offence charged against the accused?" 32 Section 32(1)(d) of the Controlled Substances Act 1984 (SA) provides that a person shall not knowingly take part in the sale, supply or administration of such a drug or substance to another person. In that case the accused's role had been to facilitate the sale of prohibited drugs by contacting a seller on behalf of a prospective purchaser. Police were in attendance at the home of the seller at the time the accused and the purchaser arrived. They were arrested prior to any sale taking place. Williams J (in a judgment in which Doyle CJ and Prior J agreed) observed: "It seems to me that there will be circumstances in which those who provide the support to a drug selling enterprise (and with the relevant knowledge and intent as already mentioned) may 'take part in the sale' of drugs even when their activities have not proceeded to the point of making a sale on a particular occasion. However it will be necessary for the prosecution, under s32(1)(d), to demonstrate a sufficient nexus between the accused and the selling operation if participation in an actual accomplished sale itself is not proved. In this way persons who introduce customers to a would be drug dealer may be brought within the ambit of s32. This was the situation in the case stated." (P 513) 33 I do not read DPP Reference No 2 of 1995 as lending support to the Crown's submission in the instant case. 34 It is to be noted that the Crimes Legislation Further Amendment Act 2000 introduced s 24A into the Act. Section 24A(1) makes it an offence for a person to be in possession of a precursor intended by that person or another to be used in the manufacture or production of a prohibited drug. "Precursor" is defined to mean a substance specified in the Regulations as a precursor for the purposes of the section. The Drug Misuse and Trafficking Amendment (Precursors) Regulation 2000 provides that any substance containing any proportion of a substance listed in Schedule 2 is specified as a precursor. Pseudoephedrine is listed in Schedule 2. Sudafed tablets contain pseudoephedrine. The penalty for an offence contrary to s 24A is a fine of 2000 penalty units or imprisonment for a term of 10 years or both. 35 The Crown submitted that there is no impediment to Parliament in later legislation proscribing an existing offence thereby creating alternative offences. In the Crown's submission a person in possession of a quantity of Sudafed tablets intending to use them to manufacture prohibited drugs is guilty of an offence contrary to both s 24 and s 24A of the Act. The penalty for offences under s 24A is less severe than the range of penalties (depending on the quantity of the prohibited drug) provided for offences under s 24. In the Crown's submission it is a matter for prosecutorial discretion as to whether a person in possession of a precursor with the relevant intention is charged pursuant to ss 24 or 24A of the Act. The construction of s 24 for which the Crown contends does produce the anomalous result that a person in possession of chemistry equipment such as flasks or the like ( and who has the intention of manufacturing prohibited drugs) is liable to conviction for an offence of knowingly take part in the manufacture of a prohibited drug under s 24 but not s 24A, while a person in possession of a quantity of precursor substance may be prosecuted under either section. 36 I consider that the terms of s 6 and s 24 of the Act are unambiguous and do not admit of the breadth of the construction sought to be placed upon them by the Crown. It is, thus, not necessary to consider the Crown's submission that the enactment of s 24A should not be resorted to as an aid in construing s 24. 37 I respectfully agree with both the reasons and conclusion reached by Judge Graham and accordingly would answer the question of law submitted by the Director of Public Prosecutions "no". ******* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.